Gutti Nukamma Vs. Matcha Bansayya and ors. - Court Judgment

LegalCrystal Citation

legalcrystal.com/780958

Subject

Limitation

Court

Chennai

Decided On

Aug-16-1946

Reported in

(1946)2MLJ303

Appellant

Gutti Nukamma

Respondent

Matcha Bansayya and ors.

Excerpt: - - again the government failed to proceed further with the matter 'and consequently on the 18th november, 1943, the subordinate judge 'closed 'this petition......party to the decree and can take steps to execute it.2. on the 9th november, 1939, the government filed an application in execution. this was numbered as e.p. no. 471 of 1939. the plaintiff and the judgment-debtors were made parties to the application. an order for the attachment of the decree was made and this was confirmed on the 21st march, 1940. the government did not, however, proceed to execute the decree and on the 21st march, 1940, the subordinate judge ' closed ' the proceedings. on the 22nd march, 1943, the government filed another execution petition-e.p. no. 152 of 1943. again the decree was attached and the attachment was made absolute after notice to all the parties to the suit. it has been suggested by the learned advocate for the judgment-debtors that the judgment-debtors.....

Judgment:

Alfred Henry Lionel Leach, C.J.

1. This is an appeal from an order of the Principal Subordinate Judge of Coconada dismissing an application for execution on the ground that it was barred by the law of limitation. On the 30th March, 1935, a preliminary decree was passed in favour of the appellant for the sum of Rs. 29,281-5-8; but the amount was subsequently scaled down under the provisions of the Madras Agriculturists' Relief Act to Rs. 4,368-1-0. On the 23rd March, 1939, the plaintiff obtained a final decree against the judgment-debtors, based on the scaling down. The suit had been filed in forma pauperis and under Order XXXIII, Rule 10, of the Code of Civil Procedure, the plaintiff was directed to pay the amount of the Court-fee, Rs. 1,222-7-0, to the Government. Rule 13 says that all matters arising between Government and a party to the suit under Rule 1 o, Rule 11 or Rule 12 of Order XXXIII shall be deemed to be questions arising between the parties to the suit within the meaning of Section 47. This means that for the purpose of executing the order in its favour the Government is a party to the decree and can take steps to execute it.

2. On the 9th November, 1939, the Government filed an application in execution. This was numbered as E.P. No. 471 of 1939. The plaintiff and the judgment-debtors were made parties to the application. An order for the attachment of the decree was made and this was confirmed on the 21st March, 1940. The Government did not, however, proceed to execute the decree and on the 21st March, 1940, the Subordinate Judge ' closed ' the proceedings. On the 22nd March, 1943, the Government filed another execution petition-E.P. No. 152 of 1943. Again the decree was attached and the attachment was made absolute after notice to all the parties to the suit. It has been suggested by the learned advocate for the judgment-debtors that the judgment-debtors were not made parties to this application. It is true that they were not named at the beginning of the petition, but there is no doubt that they were made parties. Relief against them was asked for and they were all served with notice of the attachment. Again the Government failed to proceed further with the matter 'and consequently on the 18th November, 1943, the Subordinate Judge ' closed ' this petition.

3. On the 20th September, 1943, the plaintiff applied for execution of the decree obtained by her.The application was opposed by the judgment debtors on the ground that the application was time barred. The plaintiff maintained that it was in time and advanced two reasons. The first was that the execution petitions filed by the Government on the 9th November, 1939, and the 22nd March, 1943, were ' steps in aid of execution' within the meaning of Article 182(5) of the Limitation Act. Thesecond reason was that as the applications filed by the Government were in law applications for the execution of the decree itself, each started a fresh period of limitation. The Subordinate Judge refused to accept these contentions and dismissed the plaintiff's application as being time barred. The plaintiff has appealed.

4. It is not necessary for this Court to decide the question whether the applications filed by the Government for the purpose of realising the money due to it by way of stamp duty are steps in aid of execution within the meaning of Article 182, because we accept the appellant's contention that the applications for execution filed by the Government are applications for the execution of the decree itself and therefore enure for the benefit of the plaintiff. Order XXI, Rule 53, makes provision for execution when the property attached is a decree. Sub-rule (2) states that where a Court makes an order for the attachment of a decree, it shall, on the application of the creditor who has attached the decree or his judgment-debtor, proceed to execute the decree and apply the net proceeds in satisfaction of the decree sought to be executed. Sub-rule (3) says that the holder of a decree sought to be executed by the attachment of another decree shall be deemed, to be the representative of the holder of the attached decree and to be entitled to execute the attached decree ' in any manner, lawful for the holder thereof.' Therefore when the Government filed its applications for execution on the 9th November, 1939 and the 22nd Marc 1943, it was acting and had the right to act, on behalf of the decree-holder. In other words, the applications have to be treated as applications for execution, by the plaintiff acting through her representative in law.

5. The applications filed by the Government specifically asked for the sale of the property covered by the decree. The fact that the Government would have been entitled to priority in payment out of the sale proceeds does not make the applications any the less applications for the execution of the decree by the decree-holder's representative. This being the position each application started a new period of limitation and therefore the petition filed by the plaintiff herself for execution on the 20th September, 1943, was in time.

6. The appeal is allowed and the case remanded to the Subordinate Judge's Court, to hear and decide the application for execution in accordance with law. The appellant is entitled to her costs here and in the Court below.